Period, Pain, and Productivity: Examining Menstrual Leave and Substantive Equality
Background
Leave for women during menstruation has been a “hotly debated” topic in many countries. In the Indian context, Member of Legislative Assembly (MLA) Ninong Ering, tabled a Bill in the Legislative Assembly of the state of Arunachal Pradesh in March 2022, proposing a two-day paid menstrual leave every month for women working in the public and private sectors. Unfortunately, the Bill was soon withdrawn at the behest of the state’s Health Minister. Further, several other legislators in the Assembly made disparaging remarks about the Bill, such as menstruation was a “dirty thing” and the Assembly was “too holy” a place to discuss such an issue.
This was undoubtedly a missed opportunity for lawmakers to discuss an important topic impacting women’s rights, equality and labor rights. Not only is it extremely disheartening that lawmakers in the country hold such antiquated views, but it is also discouraging to see that instead of working to destigmatise the issue of menstruation, and educate, spread awareness and dispel harmful taboos surrounding the issue, legislators are instead uninterested in viewing it as a public health matter fit for discussion.
Earlier, in 2017, an attempt to introduce the same Bill titled the Menstruation Benefit Bill, 2017 as a Private Member’s Bill in the Lok Sabha, the Lower House of Parliament did not succeed either. Apart from these legislative efforts, menstrual leave had also become a major point of discussion in 2020 when Zomato, an online food aggregator in India offered a ten-day “period leave” to its women employees.
Period leaves have been a contentious issue, garnering both support and backlash. While it is a fact that many women suffer from debilitating pain during menstruation which directly impacts their ability to work, period leaves have also been opposed strenuously on the grounds that it will contribute to further discrimination and may lead to employers being averse to hiring and promoting women, or it would be seen as a sign of “weakness”. It is also pertinent to note here that while menstrual leave largely concerns women, menstruating people are not limited to only women, and also include non-binary persons and trans men.
Menstrual Leave and the Question of Substantive Equality
Many have questioned the necessity of a separate policy for menstrual leave and why women experiencing severe pain during their menstrual cycle cannot simply avail their workplace’s medical/sick leave that is available to all employees. From the perspective of discrimination law, this question can be answered by observing that a gender-neutral medical/sick leave policy adopts the approach of formal equality, which follows the view that a person’s individual physical or personal characteristics should be viewed as irrelevant in determining whether they have a right to some social benefit or gain. Thus, formal equality propagates that simply treating everyone alike is enough to achieve equality. However, this approach disregards the structural, historical disadvantages and in this particular case, physiological and biological differences that certain classes of persons, in this instance women, experience. In order to achieve equality, it is important to recognize that unequal classes cannot be treated equally. This can undoubtedly lead to indirect discrimination, and thus, the universally applicable medical leave cannot be viewed as a solution or alternative against menstrual leave.
The formal equality approach essentially fails to take into consideration the impact an equal treatment policy, such as gender-neutral sick leave can have on individuals belonging to unequal classes. The failure to recognise and institute appropriate measures to tackle this often leads to indirect discrimination. Consequently, the facially neutral provision of a gender-neutral sick leave policy that disproportionately affects women who menstruate, cannot be said to contribute towards substantive equality. In Nevada Department of Human Resources v. Hibbs (“Hibbs”), the Supreme Court of the United States (“SCOTUS”) recognized that if workplaces were designed with men in mind, and its terms and conditions were suited only for them, then women, a category of employees who did not fit this mold would inevitably be at a disadvantage as their specific needs would not be accommodated. While striving to achieve equality, especially in the context of workplaces, it is crucial that laws and policies don’t fall for the male comparator approach, which is more likely to happen as most workplaces are modelled with the benchmark of male employees. The formal equality approach while declaring that all persons must be treated equally essentially ends up treating women as being similarly placed as a man and subsequently meting out the same treatment that is afforded to men even in the face of, and despite obvious differences. Such an approach does not adequately recognize and accommodate needs that are specific to women.
Further, women who suffer menstruation pain are at a particular disadvantage if compared both to women who don’t suffer such pain and men. It also cannot be taken for granted that female policy-makers and employers would by default support menstrual leave, just because it is a “women’s problem” and that contributes to the need for a concrete policy that translates into codified law.
Lastly, it is difficult to get behind the idea that menstruation can be compared to ill health. As menstruation cannot be equated to sickness/illness, it is unfair that women whose work and productivity suffer due to such pain be made to accommodate menstrual care and sickness within the same framework of leaves, while men would just need to fit in sickness within the same, which arguably goes against the very essence of substantive equality. Not only does it eat into the number of sick leave days available (which are limited in themselves) it is also something that male employees do not have to do, leading to an unequal number of actual sick leaves that can be availed by women. Thus, a gender-neutral medical leave policy does not take into account women’s special need for menstrual leaves, apart from the leaves available for actual sickness. Consequently, such a policy would still amount to inequality in effect.
Avanti Deshpande is a graduate of ILS Law College, Pune, India. Her research interests include human rights law, public international law, environmental law, and gender studies.